11.21.08(b): The Role of Litigation in forming Public Health Policy: Tobacco

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11.21.08(b): The Role of Litigation in forming Public Health Policy: Tobacco

  1. 1. Attribution: Peter D. Jacobson, JD, MPH, 2009License: Unless otherwise noted, this material is made available under the termsof the Creative Commons Attribution–Noncommercial–Share Alike 3.0License: http://creativecommons.org/licenses/by-nc-sa/3.0/We have reviewed this material in accordance with U.S. Copyright Law and have tried to maximize your abilityto use, share, and adapt it. The citation key on the following slide provides information about how you may shareand adapt this material.Copyright holders of content included in this material should contact open.michigan@umich.edu with anyquestions, corrections, or clarification regarding the use of content.For more information about how to cite these materials visit http://open.umich.edu/education/about/terms-of-use.Any medical information in this material is intended to inform and educate and is not a tool for self-diagnosis ora replacement for medical evaluation, advice, diagnosis or treatment by a healthcare professional. Please speak toyour physician if you have questions about your medical condition.Viewer discretion is advised: Some medical content is graphic and may not be suitable for all viewers.
  2. 2. The Role of Litigation in forming Public Health Policy: Tobacco M1 – Cardiovascular/Respiratory Sequence Peter D. Jacobson, JD, MPHFall 2008
  3. 3. PRESENTATION OUTLINE•  Policy context•  Role of litigation•  Tobacco control policy and litigation•  Applicability to other public health issues•  Conclusion
  4. 4. POLICY CONTEXTThe issues•  Role of litigation – Relative to political process in forming public health policy – Relative to other available public health remedies•  Unprecedented scope and objectives of current tobacco and gun control litigation
  5. 5. POLICY CONTEXT (cont.)Policy context•  Regulatory failure•  Role of local health agencies relative to state agencies – Tobacco litigation mostly initiated at state level – Gun control litigation mostly initiated at local level•  Litigation as political issue and as shaping public health policy
  6. 6. THE LITIGATION ENVIRONMENTFunctions of litigation•  Compensation•  Deterrence•  Accountability•  Equity•  Corrective functions vs. promoting social goals
  7. 7. TOBACCO LITIGATIONThree Waves•  First two waves based on negligence and strict liability – No damages paid – Individual responsibility defense
  8. 8. TOBACCO LITIGATION (cont.)•  Third wave more expansive – State Attorneys General Medicaid litigation – Public health policy goals more explicit 4  volved from damages to public health E 4  tate settlements somewhat erode public S health focus
  9. 9. FRAMEWORK FOR ANALYSISRosenberg model•  Dynamic view•  Constrained viewComparative institutional analysis•  Political processes•  The market•  The courtsRule-shifting vs. culture-shifting effects
  10. 10. Tobacco Control PoliciesEconomic•  Excise Taxes•  Damage awards from litigationRegulatory/Legislative•  Youth access restrictions•  Restrictions on smoking•  Advertising restrictions•  Marketing curbs (i.e., on logos and sporting event scholarship)•  Enforcement activities
  11. 11. Tobacco Control Policies (cont.)Information/Education•  Education about the harms from tobacco products•  Disclosure of tobacco industry documents•  Settlement negotiations with the tobacco industry•  Shifting the public health debate•  Smoking cessation programs•  Research in tobacco control policy or in tobacco-related diseases•  Counter advertising (i.e., anti-smoking ads)
  12. 12. Role of Litigation in Changing Tobacco PolicyExclusive domain•  Damage awardsDirect effects•  Corrective measures shared with legislatures
  13. 13. Role of Litigation in Changing Tobacco Policy (cont.)Indirect effects•  Disclosure of incriminating documents•  Educational function•  Stimulate other policymakers to act•  Influence changes in industry behavior
  14. 14. ROLE OF POLITICAL INSTITUTIONS IN CHANGING TOBACCO POLICYDirect Indirect•  Every policy •  Stimulate instrumentality negotiations with the except damages industry
  15. 15. ARGUMENTS FAVORING JUDICIAL POLICYMAKINGPragmatic•  Legislative/regulatory failure•  Damage awards forcing large price increases•  Motivating public support through disclosing documents•  Forcing tobacco industry to negotiate
  16. 16. ARGUMENTS FAVORING JUDICIAL POLICYMAKING (cont.)Philosophical•  Courts are inherently policymakers•  Blurring of the lines between the political and judicial processes
  17. 17. OBJECTIONS TO JUDICIAL POLICYMAKINGPhilosophical•  Separation of powers•  Legitimacy of courts as policymakers•  Procedural constraints limit ability of judges to evaluate policy alternatives
  18. 18. OBJECTIONS TO JUDICIAL POLICYMAKING (cont.)Pragmatic•  Novel legal theories being tested•  Courts might not get it “right”•  Diverts resources from other policy efforts•  Reliance on litigation as a solution
  19. 19. ROLE OF THE COURTS IN PUBLIC HEALTH POLICYInstitutional choice•  Preconditions to litigation – Building the moral and political case – Not necessarily present in other public health battles•  Litigation as second-best solution – Distinct role in more comprehensive strategy – Concern about over-reliance on litigation
  20. 20. ROLE OF THE COURTS IN PUBLIC HEALTH POLICY (cont.)Individual choice and responsibility•  Balance between industry culpability and individual freedom•  Tobacco as extreme case•  Applicability to other public health issues
  21. 21. Applicability to Other Public Health Issues•  Obesity•  Gun control•  Gambling addiction•  Differences?•  Similarities?
  22. 22. CONCLUSION•  Complex interactions between political theory and pragmatic policymaking realities.•  Blurring of the line between litigation and politics of public health – Opponents must confront legislative/ regulatory failure – Proponents must recognize possibility that litigation will not change policy.
  23. 23. QUESTIONS FOR DISCUSSION(1) Which issues are amendable to litigation? Tobacco? Alcohol? Guns? Obesity?(2) What is achievable through litigation thatcannot be obtained from other public healthapproaches?(3) From your perspective, what are the costs andbenefits from pursuing litigation as a policystrategy?

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